Citation Nr: 0915663
Decision Date: 04/27/09 Archive Date: 05/07/09
DOCKET NO. 05-35 323 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Los
Angeles, California
THE ISSUE
Entitlement to an effective date earlier than March 24, 2004,
for the award of a 100 percent rating for post-traumatic
stress disorder (PTSD).
REPRESENTATION
Appellant represented by: California Department of
Veterans Affairs
ATTORNEY FOR THE BOARD
T. Mainelli, Counsel
INTRODUCTION
The Veteran served on active duty from April 1971 to April
1972.
This case comes before the Board of Veterans' Appeals on
appeal from a July 2004 rating decision by the Department of
Veterans Affairs (VA) Regional Office (RO) in Los Angeles,
California.
FINDINGS OF FACT
1. An unappealed RO rating decision dated August 27, 2003,
denied a claim of entitlement to an increased rating for
PTSD.
2. The Veteran filed a formal claim for an increased rating
for PTSD on September 17, 2003.
3. It is factually ascertainable that the Veteran's PTSD
resulted in total industrial and social impairment within one
year from the claim for an increased rating filed in
September 2003, based upon a VA mental health consultation
report dated August 13, 2003.
4. The proper effective date of award is August 28, 2003,
the day following a final decision denying an increased
rating for PTSD.
CONCLUSIONS OF LAW
1. The RO's August 27, 2003, rating decision, that denied an
increased rating for PTSD, is final. 38 U.S.C.A. § 7105(c)
(West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2008).
2. The criteria for an effective date of August 28, 2003,
for the award of a 100 percent rating for PTSD have been met.
38 U.S.C.A. §§ 1155, 5107, 5110, 7105(c) (West 2002);
38 C.F.R. §§ 3.102, 3.104, 3.400(o)(2), 4.3, 4.130,
Diagnostic Code (DC) 9411 (2008); Rudd v. Nicholson, 20 Vet.
App. 296, 300 (2006).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran seeks an effective date earlier than March 24,
2004, for his award of a 100 percent rating for PTSD. He
argues that he is entitled to an effective date of September
17, 2003, which is the date he filed a claim for an increased
rating which ultimately led to an adjudication of his claim
awarding the current 100 percent rating.
Generally, the effective date of an evaluation and award of
pension, compensation or dependency and indemnity
compensation based on an original claim, a claim reopened
after final disallowance, or a claim for increase will be the
date of receipt of the claim or the date entitlement arose,
whichever is the later. 38 U.S.C.A. § 5110(a); 38 C.F.R.
§ 3.400.
An increase in disability compensation may be granted from
the earliest date on which it is factually ascertainable that
an increase in disability occurred if the claim for an
increase is received within one year from that date.
38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). When the
increase in disability occurred prior to one year from the
date of filing, an effective date of award cannot be awarded
prior to the date of the application. Harper v. Brown, 10
Vet. App. 125, 126-27 (1997); 38 C.F.R. § 3.400(o)(2);
VAOPGCPREC 12-98 (Sept. 23, 1998).
The term "application," while not defined in the statute,
is broadly construed by regulation to include "a formal or
informal communication in writing requesting a determination
of entitlement, or evidencing a belief in entitlement, to a
benefit." 38 C.F.R. § 3.1(p). Where a formal claim has
already been allowed, certain submissions will be accepted as
an informal claim such as a report of examination or
hospitalization by the VA. 38 C.F.R. §§ 3.157(b)(1)-(b)(3).
Furthermore, any communication or action indicating an intent
to apply for VA benefits from a claimant or representative
may be considered an informal claim provided that such
informal claim identify the benefit being sought. 38 C.F.R.
§ 3.155(a). See Brannon v. West, 12 Vet. App. 32, 34 (1998).
In determining the effective date of award, the Board is
required to look to all communications in the file which may
be construed as a formal or an informal claim and, then, to
all other evidence in the record to determine the "earliest
date of which," within the year prior to the claim, the
increase in disability was ascertainable. Quarles v.
Derwinski, 3. Vet. App. 129, 134 (1992).
Appellate review of a rating decision is initiated by a
notice of disagreement (NOD) and completed substantive appeal
after a statement of the case (SOC) has been furnished.
38 U.S.C.A. § 7105(a); 38 C.F.R. § 20.200. Failure to file
an NOD within one year from the date of notice of the
decision renders a rating decision final. 38 U.S.C.A.
§ 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. A final
decision is generally not subject to revision on the same
factual basis. 38 C.F.R. § 3.104(a). Previous
determinations that are final and binding, including
decisions of service connection, degree of disability, age,
marriage, relationship, service, dependency, line of duty,
and other issues, will be accepted as correct in the absence
of clear and unmistakable error (CUE). 38 C.F.R. § 3.105(a).
In Rudd v. Nicholson, 20 Vet. App. 296, 300 (2006), the
United States Court of Appeals for Veterans Claims (Court)
held that when a rating decision is final, only a request for
a revision premised on CUE could result in the assignment of
earlier effective date. A freestanding claim for an earlier
effective date, once the appeal becomes final, attempts to
vitiate the rule of finality.
Disability evaluations are determined by the application of
the facts presented to VA's Schedule for Rating Disabilities
(Rating Schedule) at 38 C.F.R. Part 4. The percentage
ratings contained in the Rating Schedule represent, as far as
can be practicably determined, the average impairment in
earning capacity resulting from diseases and injuries
incurred or aggravated during military service and the
residual conditions in civilian occupations. 38 U.S.C.A.
§ 1155; 38 C.F.R. §§ 3.321(a), 4.1.
In evaluating the severity of a particular disability, it is
essential to consider its history. 38 C.F.R. § 4.1; Peyton
v. Derwinski, 1 Vet. App. 282 (1991). Where there is a
question as to which of two evaluations shall be applied, the
higher rating will be assigned if the disability picture more
nearly approximates the criteria required for that
evaluation. Otherwise, the lower rating will be assigned.
38 C.F.R. § 4.7.
Compensation for service-connected injury is limited to those
claims which show present disability. Where entitlement to
compensation has already been established and an increase in
the disability rating is at issue, the present level of
disability is of primary importance. Francisco v. Brown,
7 Vet. App. 55, 58 (1994). However, separate ratings may be
assigned for separate periods of time based on the facts
found. This practice is known as "staged" ratings." Hart
v. Mansfield, 21 Vet. App. 505 (2007). The relevant temporal
focus for adjudicating an increased rating claim is on the
evidence concerning the state of the disability from the time
period one year before the claim was filed until VA makes a
final decision on the claim. Id. See generally 38 U.S.C.A.
§ 5110(b)(2).
The Board observes that the words "slight," "moderate" and
"severe" are not defined in the Rating Schedule. Rather
than applying a mechanical formula, the Board must evaluate
all of the evidence to the end that its decisions are
"equitable and just." 38 C.F.R. § 4.6. The use of
descriptive terminology by medical examiners, although an
element of evidence to be considered by the Board, is not
dispositive of an issue. All evidence must be evaluated in
arriving at a decision. 38 U.S.C.A. § 7104(a); 38 C.F.R.
§§ 4.2, 4.6.
The Veteran's PTSD is evaluated under the criteria of DC
9411. See 38 C.F.R. § 4.132. Historically, the Veteran's
PTSD has been evaluated as follows: 30 percent disabling
effective February 13, 2002; a temporary 100 percent rating
based upon hospitalized treatment effective December 9, 2002;
a 50 percent rating effective April 1, 2003; and a 100
percent rating effective March 24, 2004.
Under DC 9411, a 30 percent rating contemplates occupational
and social impairment with occasional decrease in work
efficiency and intermittent periods of inability to perform
occupational tasks (although generally functioning
satisfactorily, with routine behavior, self-care, and
conversation normal), due to such symptoms as: depressed
mood, anxiety, suspiciousness, panic attacks (weekly or less
often), chronic sleep impairment, mild memory loss (such as
forgetting names, directions, recent events). 38 C.F.R.
§ 4.130, DC 9411.
A 50 percent evaluation contemplates occupational and social
impairment with reduced reliability and productivity due to
such symptoms as: flattened affect; circumstantial,
circumlocutory, or stereotyped speech; panic attacks more
than once a week; difficulty in understanding complex
commands; impairment of short-and long-term memory; impaired
judgment; impaired abstract thinking; disturbance of
motivation and mood; and difficulty in establishing and
maintaining effective work and social relationships. Id.
A 70 percent evaluation contemplates occupational and social
impairment with deficiencies in most areas, such as work,
school, family relations, judgment, thinking, or mood, due to
such symptoms as: suicidal ideation; obsessional rituals
which interfere with routine activities; intermittently
illogical obscure, or irrelevant speech; near-continuous
panic or depression affecting the ability to function
independently, appropriately and effectively; impaired
impulse control (such as unprovoked irritability with periods
of violence); spatial disorientation; neglect of personal
appearance and hygiene; difficulty in adapting to stressful
circumstances (including work or a worklike setting);
inability to establish and maintain effective relationships.
Id.
A 100 percent evaluation contemplates total occupational and
social impairment, due to such symptoms as: gross impairment
in thought processes or communication; persistent delusions
or hallucinations; grossly inappropriate behavior; persistent
danger of hurting self or others; intermittent inability to
perform activities of daily living (including maintenance of
minimal personal hygiene); disorientation to time or place;
memory loss for names of close relatives, own occupation, or
own name. Id.
The nomenclature employed in the portion of VA's Rating
Schedule that addresses service-connected psychiatric
disabilities is based upon the Diagnostic and Statistical
Manual of Mental Disorders, Fourth Edition, of the American
Psychiatric Association (also known as "DSM-IV").
38 C.F.R. § 4.130. DSM-IV contains a Global Assessment of
Functioning (GAF) scale, with scores ranging between zero and
100 percent, representing the psychological, social, and
occupational functioning of an individual on a hypothetical
continuum of mental health - illness. Higher scores
correspond to better functioning of the individual.
Under DSM-IV, GAF scores ranging between 61 and 70 are
assigned when there are some mild symptoms (e.g., depressed
mood and mild insomnia), or some difficulty in social,
occupational, or school functioning (e.g., occasional
truancy, or theft within the household), but when the
individual is functioning pretty well and has some meaningful
interpersonal relationships.
GAF scores ranging between 51 and 60 are assigned when there
are moderate symptoms (like flat affect and circumstantial
speech, and occasional panic attacks), or moderate difficulty
in social, occupational, or school functioning (e.g., few
friends, conflicts with peers or co-workers).
GAF scores ranging between 41 and 50 are assigned when there
are serious symptoms (e.g., suicidal ideation, severe
obsessional rituals, frequent shoplifting), or any serious
impairment in social, occupational, or school functioning
(e.g., no friends, unable to keep a job).
GAF scores ranging between 31 and 40 are assigned when there
is some impairment in reality testing or communication (e.g.,
speech is at times illogical, obscure, or irrelevant) or
major impairment in several areas, such as work or school,
family relations, judgment, thinking, or mood (e.g.,
depressed man avoids friends, neglects family and is unable
to work).
Symptoms listed in VA's general rating formula for mental
disorders are not intended to constitute an exhaustive list,
but rather are to serve as examples of the type and degree of
the symptoms, or their effects, that would justify a
particular rating. Mauerhan v. Principi, 16 Vet. App. 436
(2002).
According to the applicable rating criteria, when evaluating
a mental disorder, the frequency, severity, and duration of
psychiatric symptoms, the length of remissions, and the
veteran's capacity for adjustment during periods of remission
must be considered. 38 C.F.R. § 4.126(a). In addition, the
evaluation must be based on all the evidence of record that
bears on occupational and social impairment rather than
solely on the examiner's assessment of the level of
disability at the moment of the examination. Id. Further,
when evaluating the level of disability from a mental
disorder, the extent of social impairment is considered, but
the rating cannot be assigned solely the basis of social
impairment. 38 C.F.R. § 4.126(b).
A layperson is generally not capable of opining on matters
requiring medical knowledge. Routen v. Brown, 10 Vet. App.
183, 186 (1997). Where the determinative issue involves
medical causation or a medical diagnosis, there must be
competent medical evidence to the effect that the claim is
plausible; lay assertions of medical status generally do not
constitute competent medical evidence. Grottveit v. Brown, 5
Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App.
492, 494 (1992).
However, lay evidence can be competent and sufficient to
establish a diagnosis of a condition when (1) a layperson is
competent to identify the medical condition, (e.g., a broken
leg), (2) the layperson is reporting a contemporaneous
medical diagnosis, or (3) lay testimony describing symptoms
at the time supports a later diagnosis by a medical
professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed.
Cir. 2007).
In essence, lay testimony is competent when it regards the
readily observable features or symptoms of injury or illness.
Layno v. Brown, 6 Vet. App. 465, 469 (1994). See also
38 C.F.R. § 3.159(a)(2). In this regard, the United States
Court of Appeals for Veterans Claims (Court) has emphasized
that when a condition may be diagnosed by its unique and
readily identifiable features, the presence of the disorder
is not a determination "medical in nature" and is capable
of lay observation. In such cases, the Board is within its
province to weigh that testimony and to make a credibility
determination as to whether that evidence supports a finding
of the presence or absence of such symptoms. See Barr v.
Nicholson, 21 Vet. App. 303 (2007).
If the evidence for and against a claim is in equipoise, the
claim will be granted. A claim will be denied only if the
preponderance of the evidence is against the claim. See
38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert v.
Derwinski, 1 Vet. App. 49, 56 (1990).
In this case, an RO rating decision dated August 27, 2003,
awarded the Veteran a 50 percent rating for PTSD effective
April 1, 2003. The RO notified the Veteran of this decision,
and his appellate rights, by letter dated September 2, 2003.
The Board can find no document filed within one year of
notice of this decision which can reasonably be construed as
an NOD, which requires a claimant to identify disagreement
with a particular RO rating decision and evidence an intent
to seek appellate review. Gallegos v. Principi, 283 F.3d
1309 (Fed. Cir. 2002).
In so holding, the Board has given a sympathetic reading to
the documents submitted by this pro se Veteran within the one
year appeal period, but fails to find any document which
satisfies the legal requirements of an NOD. A September 2003
written statement, which has been accepted as the basis for
the increased rating claim on appeal, requested an increased
rating for PTSD based upon a worsening of symptoms. A July
2004 written statement from the Veteran expressed
disagreement with the RO's July 2004 rating decision, and
specifically requested an effective date to September 17,
2003, which further corroborates the Veteran's intentions
that the September 2003 filing constitute a claim for an
increased rating.
Accordingly, the Board must find that the RO's August 27,
2003, rating decision is final as the Veteran did not file a
timely NOD within one year of notice of the decision.
38 U.S.C.A. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103.
This decision cannot be revisited absent a CUE claim. Rudd,
20 Vet. App. at 300. Consequently, an award of an effective
date on or prior to August 27, 2003, is precluded.
The next written document submitted by the Veteran after the
August 27, 2003, decision was received on September 17, 2003,
which is the date the Veteran seeks to establish an earlier
effective date of award for his 100 percent rating.
The RO has assigned an effective date of March 24, 2004, for
the 100 percent rating for PTSD, which represents the date of
a VA inpatient hospitalization for psychotic symptoms. The
Veteran was admitted with a GAF score of 20, and was later
assigned GAF scores ranging from 40 to 50. VA PTSD
examination in May 2004, which was based upon review of the
claims folder, found that the Veteran was seriously impaired
in his social function by a host of problems, including
paranoid schizophrenia and PTSD. It was questioned whether
the Veteran was capable of managing his funds. The examiner
assigned separate GAF scores of 40 for diagnoses of PTSD,
paranoid schizophrenia and alcohol abuse, in remission.
Notably, the May 2004 VA examiner commented that the
Veteran's condition appeared to have worsened stating that
"[a]pproximately six months to a year ago [the Veteran]
stabilized in a regressed position since." This timeline of
a permanently increased severity of PTSD symptoms correlates
to the Veteran's assertions of increased severity of symptoms
on his September 2003 application for an increased rating.
Important for this decision, the record includes a mental
health consultation in the VA clinical setting on August 13,
2003. Notably, this record was received after the RO's
decision on August 27, 2003. The Veteran reported auditory
hallucinations, paranoia, anxiety, depression, low self-
esteem, complete lapses of memory, and poor concentration.
Due to his paranoia, the Veteran had almost complete social
isolation except for family members. Following mental status
examination, the examiner stated that the Veteran "was
unable to adapt to a work or work-like situation due to
paranoia and delusional ideation." The examiner deemed the
Veteran incompetent to manage funds on his behalf.
On review of this record, the Board notes that the Veteran
last worked in November 2002. The August 13, 2003, VA mental
health consultation report opined that the Veteran's overall
mental disorder resulted in near total industrial and social
impairment. This assessment was essentially confirmed with
the May 2004 VA examination report, which placed the onset of
the Veteran's total industrial and social impairment from six
months to one year prior to the examination.
In reviewing this case, the Board acknowledges that the
Veteran holds a diagnosis of paranoid schizophrenia which has
not been service-connected. In awarding a 100 percent rating
effective March 24, 2004, the RO did not make a distinction
between the symptoms attributable to the service-connected
PTSD and non-service connected paranoid schizophrenia. The
medical evidence in this case does not provide a clear
delineation of the symptoms attributable to each diagnosis.
As such, the Board will not make such a distinction and will
attribute all current psychiatric symptoms to the service-
connected PTSD. See generally Mittleider v. West, 11 Vet.
App. 181 (1998) (where it is not possible to distinguish
between the effects of a service-connected disability from a
non service-connected disability, the provisions of 38 C.F.R.
§ 3.102 dictate that reasonable doubt be resolved in the
veteran's favor by attributing the effects to the service
connected disability). See also 61 Fed. Reg. 52695, 52698
(Oct. 8, 1996).
Based upon the above, the Board finds that the lay and
medical evidence of record establishes that the Veteran's
PTSD resulted in total industrial and social impairment at
the time he filed his claim for an increased rating on
September 17, 2003. Applying the provisions of 38 C.F.R.
§ 3.400(o)(2), the Board further finds that it is factually
ascertainable that such increased severity of disability was
demonstrated by the August 13, 2003, VA mental health
consultation report, which was within one year of the claim
for an increased rating filed in September 2003.
Due to the finality of the RO's August 27, 2003, rating
decision, the Board awards a 100 percent rating for PTSD
effective August 28, 2003, the day following a prior final RO
decision on this issue. The Board is jurisdictionally
precluded from consideration of an earlier effective date of
award due to the finality of the RO's August 27, 2003
decision. Rudd, 20 Vet. App. at 300.
As provided for by the Veterans Claims Assistance Act of 2000
(VCAA), VA has a duty to notify and assist claimants in
substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100,
5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2008;
38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2008).
Here, the Veteran challenged the RO's assignment of an
effective date of award pursuant to the award of a 100
percent rating for PTSD assigned in a July 2004 rating
decision. In conjunction with that claim, the Veteran was
provided VCAA notice in May 2004 which substantially complied
with the VCAA notice requirements. See 38 U.S.C.A. §
5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi,
16 Vet. App. 183 (2002).
The issue currently on appeal involves a retroactive review
of the evidence of record at the time of the RO's July 2004
decision. As held above, the Board has granted an effective
date of August 28, 2003, for the award of a 100 percent
rating for PTSD, which is the day following a final RO rating
decision which cannot be jurisdictionally revisited by the
Board. As such, further notice or assistance under the VCAA
is not warranted as there is no remaining aspect of the claim
that can be substantiated as a matter of law. See VAOPGCPREC
5-2004 (June 23, 2004) (VA is not required to provide notice
of the information and evidence necessary to substantiate a
claim where that claim cannot be substantiated because there
is no legal basis for the claim or because undisputed facts
render the claimant ineligible for the claimed benefit).
ORDER
An effective date of August 28, 2003 for the award of a 100
percent rating for PTSD is granted.
____________________________________________
ERIC S. LEBOFF
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs